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Dowda v. State

Court of Appeals of Georgia, Second Division

April 21, 2017

DOWDA
v.
THE STATE

          DOYLE, C. J., MILLER, P. J., and REESE, J.

          Miller, Presiding Judge.

         Following a jury trial, Cody W. Dowda was convicted of criminal trespass. (OCGA § 16-7-21 (b) (1)).[1] Dowda appeals from the denial of his motion for new trial, contending that (1) the evidence was insufficient to support his conviction; (2) the trial court erred in admitting hearsay and character evidence; and (3) the trial court erred in failing to allow defense counsel to read and respond to a jury note which evidenced juror confusion. As set forth herein, the evidence was sufficient to sustain Dowda's conviction for trespass and the admission of any hearsay was harmless; however, the trial court was required to give defense counsel an opportunity to review the jury note and to suggest an appropriate response. Because the trial court failed to do so, we reverse Dowda's trespass conviction. We note, however, that the State is entitled to retry Dowda because the evidence supported his conviction.

         Viewed in the light most favorable to Dowda's conviction, [2] the evidence showed that the victim lived with her daughter and granddaughter in Douglas County. On September 23, 2014, the victim's granddaughter saw a white pick-up truck back up onto the victim's property and stop about "two steps" from a woodpile the victim kept on her property about 25 yards from the roadway. The granddaughter saw Dowda, who was wearing a bright orange shirt, standing by the right side of the truck's tailgate, "pretty close" to the wood pile.

         The granddaughter then phoned her mother and said that there were two people in a truck backed up to the victim's firewood pile. The victim and her daughter came running out of the house and saw the white pick-up on her property with the tailgate up against her woodpile. The truck did not appear to be stuck.

         The victim and her daughter saw the truck pull out, drive up the street, turn onto another road, and stop. Two "boys" were inside the truck at that time, and one of them had dark hair and was wearing a bright orange shirt. Shortly thereafter, the boys abandoned the truck on a nearby street.

         The victim called 911 and when the investigating officer arrived she went over to where the truck was parked. The investigating officer determined that the truck belonged to Dowda's father, who lived nearby. The officer then went to Dowda's home and told Dowda's father that the truck had been impounded. The father called Dowda, and the officer spoke with Dowda on the phone and asked him to return home.

         Dowda arrived at his home on foot about five to ten minutes later wearing a bright orange shirt, and he told the officer that the truck had broken down. The officer testified that there were tire tracks in the victim's grass going from the street curb up to five feet from the woodpile, and that the tire tracks were inconsistent with a broken-down vehicle.

         Dowda was accused of criminal trespass and criminal attempt to commit a misdemeanor (theft by taking). Following a jury trial, he was convicted of the criminal trespass count, but acquitted of the criminal attempt count. Dowda now appeals.

         1. On appeal, Dowda contends that the evidence was insufficient to support his conviction for criminal trespass. We disagree.

         A person commits the offense of criminal trespass when he "knowingly and without authority. . . [e]nters upon the land or premises of another person . . . for an unlawful purpose[.]" OCGA § 16-7-21 (b) (1).

         Here, the victim's granddaughter saw Dowda back the truck onto the victim's property and stop it next to the woodpile, and Dowda fled in the truck and abandoned it on a nearby street right after he was spotted by the victim and her daughter. Moreover, Dowda's explanation that the truck had broken down was inconsistent with the tire tracks on the victim's property, as well as the witnesses' testimony that the truck did not appear to be stuck. This evidence authorized the jury to find that Dowda knowingly and without authority backed the white pickup truck onto the victim's property for the unlawful purpose of taking the victim's firewood.[3] Consequently, the evidence was sufficient to support Dowda's conviction for criminal trespass. See Harris v. State, 222 Ga.App. 56, 57 (1) (473 S.E.2d 229) (1996) (evidence that defendant was found walking up the stairs of a burglarized fraternity house at 3:00 a.m. was sufficient to support a finding of unlawful purpose in support of his conviction for criminal trespass); Smith v. State, 226 Ga.App. 150, 151 (1) (485 S.E.2d 538) (1997) (evidence that a man matching defendant's description had chiseling tools and left a building shortly after the building's door was chiseled open was sufficient to support his criminal trespass conviction).

         2. In two enumerations of error, Dowda also contends that the trial court erroneously admitted hearsay evidence at his trial. Specifically Dowda argues that the trial court erred in allowing (1) the victim to testify about her granddaughter's phone call, and (2) the officer to testify about Dowda's father's demeanor when the officer told the father why he had to impound the truck. Because these alleged ...


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